In a statement issued today, UN Secretary-General Ban Ki-Moon said: “Racism undermines peace, security, justice and social progress. It is a violation of human rights that tears at individuals and rips apart the social fabric. As we mark this International Day under the theme of ‘racism and conflict,’ my thoughts are with the victims. Racism and racial discrimination have been used as weapons to engender fear and hatred. In extreme cases, ruthless leaders instigate prejudice to incite genocide, war crimes and crimes against humanity.”

The UN launched a new website, “Let’s Fight Racism,” that includes a feature on the website meant to highlight implicit bias by asking the viewer to choose a description of the person just based on the person’s appearance.

The DePaul Journal for Social Justice, Spring 2011, included an article by former EJS law clerk Audrey Daniel (now an Americorps VISTA Fellow at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area) on “The Intent Doctrine and CERD: How the United States Fails to Meet its International Obligations in Racial Discrimination Jurisprudence,” 4 DePaul J. for Soc. Just. 263 (2011), detailing the failure by the United States to comply with its obligations as a CERD party and effectively address contemporary racial discrimination.

“Although the United States ratified the International Convention on the Elimination of All Forms of Racial Discrimination, it does not further its human rights objectives,” wrote Audrey. “Specifically it fails to address the Intent Doctrine, which requires that a plaintiff prove a perpetrator’s intent to discriminate to win an equal protection claim. This doctrine violates CERD’s very definition of discrimination.”

Utilizing a disparate impact standard of discrimination, CERD offers broad protections against modern forms of discrimination such as implicit bias and structural racism. The Intent Doctrine, in comparison, is unequipped to combat these latent, yet incredibly pervasive types of racial discrimination. Because of this substantial disconnect between Supreme Court precedent and the United Nations treaty, the United States is in violation of its commitment to the Convention and to the ideals set forth therein. While other party states maintain progressive standards similar to those laid out by CERD, the United States refuses to modify its laws to comply with the Convention. It continues to implement a doctrine that is ill-equipped to remediate contemporary manifestations of race-based discrimination. This article will explore how the Intent Doctrine violates the very fundamentals of CERD’s human rights objectives, and provide suggestions for how civil and human rights advocates can leverage CERD’s language and international mandate to advance anti-discrimination law in the United States.